APPEAL from the Circuit Court of Stephenson County; the Hon.
FRANCIS X. MAHONEY, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
This is an appeal by the Freeport Fire Protection District and the town of Silver Creek from the judgment of the circuit court of Stephenson County which held that neither plaintiff had standing to bring a quo warrantor action against the city of Freeport questioning its annexation of certain property within the fire-protection district.
The property annexed by the city of Freeport is contiguous to it, and neither plaintiff alleges that the annexation would render the remainder of the fire-protection district's territory noncontiguous or would impair its ability to serve the remainder of its territory. The Attorney General and the State's Attorney of Stephenson County both declined to apply for a writ of quo warrantor to question the city's annexation of the territory in question, whereupon the plaintiffs applied directly to the circuit court asking it to issue the writ. The city objected that the plaintiffs had no standing to apply directly for a writ of quo warrantor. The trial court, after a hearing, held that the plaintiffs did not have standing to bring a quo warrantor action and denied their petition.
Originally the writ of quo warrantor was a high prerogative writ which could only be granted by application to the crown. (See 65 Am.Jur.2d Quo Warrantor § 2, at 230 (1972).) Under the common law in this country, only the Attorney General or the State's Attorney, as representatives of the people, could apply to the court for a writ of quo warrantor. While originally a criminal proceeding, it has gradually become civil in form and is now governed by the rules of the Civil Practice Act. However, its purpose is the same as in ancient times — to inquire by what right or authority a certain office is held, an act performed or, as in this case, to test the legality of an act or proceeding. (See Rowan v. City of Shawneetown (1941), 378 Ill. 289, for a discussion of the background and development of the writ of quo warrantor.) In time, the law of quo warrantor evolved to the point where a private person having an interest in the subject matter could apply to the Attorney General or to the State's Attorney for issuance of the writ on his behalf, and if the petition he presented was in proper form and supported by sufficient affidavits, those authorities were supposed to apply to the court to issue the writ. If they refused to do so they could be required by mandamus to so apply. See People ex rel. Miller v. Fullenwider (1928), 329 Ill. 65.
In 1937, the Illinois legislature by the Quo Warrantor Act (Ill. Rev. Stat. 1937, ch. 112, pars. 9-18) provided that where the public authorities refused, after having been requested to apply for a writ of quo warrantor, an individual having a private interest at stake could apply directly to the court for issuance of the writ after notice to the Attorney General and the State's Attorney and the adverse party of his intention to do so. In People ex rel. McCarthy v. Firek (1955), 5 Ill.2d 317, it was held that a private individual could apply for a writ of quo warrantor under his right as a taxpayer.
However, while the law has evolved to a more liberal treatment of the right of the individual who has a purely private interest, there has never been any alteration in the concept of quo warrantor as applied to a matter of public interest or governmental function. In such cases it has been consistently held that only the Attorney General or the State's Attorney, as representatives of the people, have standing to apply for a writ of quo warrantor. In matters of purely public interest or concern the discretion of these public officials is absolute as to whether they shall ask the court to issue the writ. See People v. Wood (1952), 411 Ill. 514.
The plaintiffs in this case allege that the annexation of the territory in question by the city will reduce their revenues and that as municipal corporations depending on such revenues, they have an interest, the same as a private citizen, which allows them to apply directly to the court in case the Attorney General and the State's Attorney have refused to do so.
The city of Freeport argues that a fire-protection district or a township are purely public bodies performing public governmental functions and can have no concerns or interests that are private since they only exist to perform a public service. Therefore, the city says, the plaintiffs are required to apply to the representatives of the people — the Attorney General or the State's Attorney — rather than directly to the court for the writ. Thus, they are bound by the refusal of the public authorities if the authorities refuse to act.
The Fire Protection District Act (Ill. Rev. Stat. 1977, ch. 127 1/2, par. 38.3) states that:
"Any territory within a fire protection district that is or has been annexed to a city, village or incorporated town * * * is, by operation of law, disconnected from the fire protection district as of the January first after such territory, is annexed * * *."
However, it is provided in the Act that such disconnection by operation of law does not occur:
"[I]f, within 60 days after such annexation * * * the fire protection district files with the appropriate court a petition alleging that such disconnection will cause the territory remaining in the district to be noncontiguous or that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district."
The plaintiffs do not make any allegations as to noncontiguity, nor do they allege that the loss of revenue consequent upon the disconnection of the territory in question would impair the fire-protection district's ability to serve its remaining territory. The city contends that section 20 of the Fire Protection District Act (Ill. Rev. Stat. 1977, ch. 127 1/2, par. 38.3) is a special Act passed for the protection of fire-protection districts and the legislature intended thereby to limit the remedy against disconnection to the grounds stated in the Act. Thus, the city says, the fire-protection district has no remedy by way of quo warrantor.
We are inclined to agree. We see no private interest in the fire-protection district or the township which was damaged by the annexation in question. The possible noncontiguity or loss of adequate revenue to operate effectively is clearly a public consideration, involving the public functions of the district, that is, its fire-fighting ability. These are the considerations — obviously public considerations — which the legislature was concerned with and which the quoted section of the Act is intended to ameliorate. We think it is logical to suppose that the legislature, in providing this relief for fire-protection districts, clearly indicated the public concerns present in the ...